Laws and Values Reflections On The Method

Laws and Values: Reflections on Method
University Press Scholarship Online
Oxford Scholarship Online
Institutions of Law: An Essay in Legal Theory

Neil MacCormick
Print publication date: 2007 Print ISBN-13: 9780198267911 Published to Oxford Scholarship Online: January 2009 DOI: 10.1093/acprof:oso/9780198267911.001.0001

Neil MacCormick
DOI:10.1093/acprof:oso/9780198267911.003.0017
Abstract and Keywords

This chapter considers and seeks to rebut possible objections that might be raised to the methods adopted in this book in relation to the study of law and legal concepts, and to the line it takes concerning the possibility of ascribing any kind of scientific status to legal scholarship. A case is developed that supports the methodology of interpretative analytical inquiry intrinsic to the present version of the institutional theory of law.
Keywords: theory of law, institutional normative order, legal pluralism, legal knowledge, methodology
16.1 Introduction
The opening chapter of this book gave a short account of the ground to be covered in it, and a brief description of the way the inquiry would proceed. It concluded: Whether an interpretative-analytical study of the present kind is of any value is a debatable question. Rather than enter into this debate here, however, it seems
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wiser first to present our account of law and let readers judge for themselves whether they find it illuminating for whatever purposes they bring to the reading of it. The promise then made was to pick up in the concluding chapter a discussion of the assumptions about methodindeed about methodologythat underlie the main theses of the book. The time has come to redeem this promise. The discussion of these assumptions has six main parts. The first deals with whether it is appropriate to start out with a definition, whether this entails a strongly conventionalist approach to legal theory and, if so, whether one necessarily falls prey to the semantic sting. The second tries to show how analysis contributes to the explanatory goals of explanatory definition, and confronts the question whether the theory that emerges is in some undesirable way anti-pluralistic. The third advances an account of the validity of legal knowledge as knowledge of institutional facts. The fourth develops the thesis that institutional facts are also interpretative facts, and require an account of interpretation that draws on theories about focal meaning and constructive interpretation. The fifth returns to the issue of the gap between ideal law and social reality and the need for awareness of the findings of empirical social sciences in relation to legal institutions. The sixth rebuts a possible charge concerning eclecticism or syncretism in methods advocated in the preceding five sections. The way is then clear for a statement of final conclusionsand then for a coda about the persisting self-doubts of legal scholarship.
16.2 Definition, Conventionalism, and the Semantic Sting

The starting point of the present work was an explanatory definition: law is institutional normative order. Some might say that starting in this way is starting from a grave mistake. H L A Hart, for example, warned several times against (p.282) reliance on definition as a starting or a finishing point for legal theory. His inaugural lecture Definition and Theory in Jurisprudence 1 deprecated traditional definition per genus et differentiam, that assigns the defined term to a more general class and then accounts for its specific features separating it form other members of the class. This does not work, he says, for concepts that are themselves highest-level classes (summa genera in Latin), nor for typical normative terms in legal usage, and yet other ways of elucidating our terms might be available, such as the Benthamite approach of defining by paraphrasis, explaining the way a term is used by paraphrasing it rather than defining it directly. In The Concept of Law he returned to the same theme in a slightly different way. He argued that one should give an account of certain very important features that are present in most cases of what we call law, or central cases, and use these to clarify rather than strictly to define the concept, allowing for the inevitable vagueness and open texture of a term like law and the presence of borderline cases such as international law, primitive law, or customary law. 2 With at least one notable exception, 3 this Hartian opposition to definition seems to have established a broadly accepted methodological practice among English-speaking jurists in the last fifty years. Yet it is open to challenge. The genus normative order 4 is clearly a more general category than law, and to define law as a particular kind of normative order is therefore an obvious possibility. If the

differentiating feature of being institutional is also susceptible of satisfactory explanation, it would seem that the way forward is perfectly clear. Certainly, the approach to explanation of norms, normative order, and institutionality might be obscure, or circular, or in some way confused or confusing. If so, that would be a flaw in the execution of the explanations at which a practice of explanatory definition aims, not a proof of its unsuitability as a method. Anyway, chapters 1 and 2 above do not seem to be flawed in any of those ways. The existence of borderline cases is hardly an objection, for just as there may be what seem to be borderline cases of law so too these may prove to be borderline cases of institutional normative order. Open texture is as much a feature of the explanatory terms as of the term explained. Moreover, since explanatory definition (p.283) is also partly stipulative 5 choosing one particular sense of the term to be defined and offering an explanation only of thatit is easy to account for other senses of the term that relate to the stipulated sense, but fall outside it. As noted in the Introduction, and as argued in chapter 14 , law in the sense of moral law concerns normative order, but not institutional normative order. Law in the sense of scientific law concerns some discerned causal order in nature, not a normative order. A good explanatory definition may in this way help rather than hinder a sensitive understanding of related but different senses of the term one seeks to explain. It acknowledges, but is not bound by, the always fluid conventions about the meaning and use of conceptual terms like law found in natural languages like English. Order in the sense of orderliness is not particularly problematic as an element of the explanation. It is once one comes down to the norm or the concept of the normative that a bedrock is reached of that which can be understood by acquaintance, and picked out by something like ostensive definition, but not made the subject of a further level of explanatory definition. This is a point to which we shall return in 16.3, below. Meanwhile, let it be observed how an explanatory definition relates to a What is? question. What is law?It is institutional normative order, and now I shall explain to you what these terms mean. Of these two sentences the former is an intelligible question, and the latter an intelligible, relevant, and potentially illuminating answer. If the explanation proceeds successfully, the questioner will have acquired an insight into the elements that make up a legal system. He or she will have acquired a new or an improved capability to pick out and perceive featureslaw and legal systemthat are common to many states, though with many local differences. They will also be able to understand that these elements are also common to many organizations that are not states, but may be in various ways state-like. This is not a very exalted capability, but if the explanation is a richly textured one, it may yield quite a lot of new insight and wisdom. 6 (p.284) We may contrast a different kind of What is law? question. Mrs Vo has had her pregnancy terminated by wrongful negligence, and seeks a remedy asserting the right to life of her lost childwhat is the law on that? 7 Here, the questioner seeks an answer to a concrete legal problem in some postulated jurisdiction. This questioner can get a satisfactory answer only from someone who knows or can find out relevant conventions,

statutes, precedents, principles, and the like, who can offer a compellingly good or at least reasonably persuasive interpretation of these in relation to the actual or hypothetical case, and put that forward as the answer to the question. Ronald Dworkin has argued that there is no sensible or interesting What is law? question that is not a more or less disguised version of this second, practical, type of question. 8 Surely this is mistaken. Once I understand what institutional normative order is, I can understand how norms contained within it bear upon concrete practical questions. I can then, indeed, proceed to raising and answering such questions. But the theoretical background to the practical questions is different, and a good answer to the theoretical question neither entails nor is entailed by a good answer to any one of the more or less infinite number of practical questions a life under law can throw up. 9 It is important to emphasize the difference between the present approach and a conventionalist one. Doing so will also enable us to avoid falling prey to the semantic sting. 10 Manifestly, any definition is about semantics, about what the defined word is taken to signify. Where definitions are proposed as a matter of conventional semantics, being lexical definitions, 11 they have a conversation-stopping quality. Why do you call the sky blue? That's just what blue meansthere is a range of colours that it is correct to call blue in English, and a cloudless sky in daytime is one of these. End of argument. This conversation-stopping (p.285) quality applies whenever one engages, or attempts to engage, in recording and accurately reporting linguistic conventions, as dictionarymakers do. If they are right about a given word, then that is just what the word means (or means in one of its senses) and there is nothing further to discuss. We might want to study the phenomena to which the term conventionally refers, and to seek a better understanding of these phenomena. But the conventional (or lexical) definition cannot contribute anything to that, and the reason why the phenomena can be called law (or whatever) is already giventhat is what the word means in English. To repeat, explanatory definitions are not in that way conventionalist. 12 As an explanatory definition, law is institutional normative order does not purport to rest upon conventional semantics or to report some finding about the language-use of the average English speaker or even the average legally well-informed English speaker. Explanatory definitions are by no means conversation-stopping. They stand or fall on the quality of explanation that is offered to back them up. To propose such a definition is to essay the best, most attractive and most illuminating account available of the subject matter in view, and to propose on that account that for the purposes of the ongoing theoretical inquiry the term be used in this way rather than some different one. An audience's ability to comprehend and evaluate the explanation depends upon its members already having some convention-based (but perhaps for any given person more or less idiosyncratic) pre-understanding of the term defined. For each such person, the issue is whether the explanatory definition and the back-up explanation do offer an enriched, and perhaps somewhat altered, understanding compared with her/his starting point, or preunderstanding. Such an enhanced understanding is not the same as an enhanced capability for insightful, skilful, and persuasive work in answering practical questions within the legal domain, though it is not likely that understanding and skill will prove to be

completely independent of each other.
16.3 Analytical Explanation and Legal Pluralism

The method of explanation used in this book has been an analytical one. Since law is supposed to be a kind of normative order, the explanation we give of it must first explain the elements of normative order. These elements are the norms whose observance (to some extent) renders interpersonal conduct to some extent orderly. Next, it must proceed to an explanation of institutions and institutionalization, thus building up the concept institutional normative order. All this would fail as an explanation if the underlying idea of the norm were unintelligible, for so then would be normative order. Norm is here the problematic term, not order as distinct from disorder. We do indeed confront in this something that is used in (p.286) explanation but that cannot itself be explained in the same way. Chapter 1 faced that problem by inviting the reader to reflect upon a practice with which she or he is assumed to be familiar in some context or another of everyday life. The practice was that of queuing at some point of service, and waiting to be served on the first come, first served basis. This is a matter of mutual coordination that in its own narrow compass makes interaction more orderly, less threatening or chaotic than it might otherwise be. Human beings are through-and-through norm-users, capable of achieving a kind of voluntary order among themselves by common observance of common norms. They are also capable of understanding this and reflecting upon the way they do this. The best explanation that can be offered is to bring a sufficiently vivid example into the consciousness of one's readers or hearers, so that they can confirm from their own experience this special aspect of universal human experience. Anyone who has read this book up to the present point must at least be conscious of being able to read a book and appraise an argument. Let such a person reflect also on the norms that structure language, or the critical reading of a text, as well as on the queue. David Hume famously introduced into philosophical discussion the distinction between is and ought, and the difficulty of explaining just what the difference is. 13 Thomas Reid acknowledged the point, but declared roundly that any person who understands the English language stands in no need of an explanation how to use the word ought, or indeed the word is. It is a distinction immediately obvious to us. 14 Certainly, this seems so when we consider practical examples like queuing or speaking. One can bring together an assemblage of reminders that one hopes will draw to another's attention that of which she/he is already aware, in what may not yet be an articulate way. So far as concerns norms, I offer the still-puzzled reader nothing better than a further reading of chapter 1 , considered yet more attentively than before. What then of institutionalization? This, according to the suggestion in chapter 2 , occurs whenever we encounter a two- or more tier normative practice. Not merely is there a queue, but there is a system for managing the queue (for example, the numbered ticketroll) and there are queue managers who ensure that customers get served in their proper turn according to rules adopted about the managed queue. The existence of norms authoritatively issued as rules depends on this kind of tiered practice, and in this

setting we therefore find norm-givers as well as norm-users. Nevertheless, the most basic understanding of norms ought to be in (p.287) terms of the norm-user, for we can conceive of many contexts of norm-use without the presence of any norm-giving authority, but the converse is inconceivablenorm-givers without norm-users. Hans Kelsen, after tackling heroically the great mystery of the ought, 15 increasingly fell away from his initial insight and in his later work sought to explain norms as species of imperatives, 16 seeking to re-open one of the great blind alleys in the history of practical philosophy generally and legal philosophy more particularly. In the work he did about the internal aspect of rule-governed conduct, H L A Hart contributed immeasurably to a user-oriented understanding of norms. Perhaps his later work on peremptory reasons 17 represented a turning-away from his own best insights, but never to the extent of Kelsen's apostasy on this point. Anyway, institutionalization can be viewed on the small scale or on the grand scale, as grand, for example, as in the case of a state's constitution or the founding treaty or charter of a great international or supranational organization. There is no need to repeat the detail of chapter 3 here. What is worth stressing, however, is the central place held by the constitution as the adopted or, in some few cases such as that of the United Kingdom, evolved, 18 set of framework norms that define and empower the various institutional agencies of state, and set limits on the powers they can exercise. This is not a rule of recognition, though courts empowered by a constitution may each be envisaged as working according to some criteria settling what rules and principles they should apply as law. A constitution is a compendiously instituting-and-empowering set of interlocking norms, usually in the form of explicit rules backed up by always contestable ideological underpinnings of the kind that judges and jurists articulate in the form of constitutional principles or fundamental values of the constitution. Why are some formally adopted constitutions actually functional ones? What makes constitutions work, when they do work? Obviously, what makes them work is the will of whichever people conceive the constitution to be their constitution, when there are enough such people, sufficiently agreed (though certainly never unanimous) about the ideological underpinnings. What they agree on, however articulately or tacitly, is a common norm that they ought to respect the constitution thus underpinned, and that anyone purporting to exercise public power must do so only in the terms permitted by the constitution. Self-aware sharing of such a norm (not necessarily made explicit at all, or in the same terms by all participants) amounts to a custom (like the inarticulate queuing norm considered in chapter 1 ). The custom can be formulated in some such terms as: everyone in state S ought to co-operate in ensuring the state functions in terms of (p.288) constitution C according to established principles, and one can very properly call this a basic norm. Kelsen, who became bogged down in the act of will approach to explaining norms, argued that custom itself can be norm-creating only if it is authorized by some norm. 19 Adoption of the norm-user's perspective as fundamental to the reality of norms and the normative purges this error. It also makes it clear that although a basic norm is indeed presupposed in the case of any working constitution, it is not a mere presupposition. It is the content of a living custom, a convention that can be articulated as

an explicit norm. These reflections on constitution and basic norm may give rise to a fresh criticism. The theory put forward might be characterized as anti-pluralist, being hopelessly narrowly focused on the writer's own state-law, or sub-state-law, taken in juxtaposition with closely similar forms of law from other states in the same western legal tradition? 20 Is this just another version of what William Twining has justly castigated as the country and western approach to jurisprudence? Should one not, at a time of acknowledged globalization of legal and economic activity, entertain a broader picture? Should one continue to treat states as the natural and necessary focus of concern for lawyers, and ignore the many other forms of normative ordering which are alive in the world today? It would be distressing if such criticisms were found to be just, for the present work belongs to a series on Law, State, and Practical Reason which aims (among other things) to contribute to a recognition of the extent to which legal order has shifted beyond the sovereign state. In this way it seeks to contribute to the tide of contemporary opinion in favour of legal pluralism, not to obstruct it. 21 One point which has been repeated throughout this book is that law as institutional normative order can be found in many contexts other than that of each single state. This is so, both because of the way international and transnational organizations have developed law beyond state boundaries, and because many of the organizations active in civil society have their own internal institutional ordering. States may indeed claim primacy over such organizations (eg, churches, international sporting associations), but the organizations need not in turn, and sometimes do not, acknowledge that primacy in the form in which it is asserted by one or another state. States represent one form of institutional normative order arranged around and through a typical range of institutions of the kind discussed in chapter 3 . Empires ancient and modern, feudal kingdoms, absolute monarchies, and tribal societies did not have the same institutional framework, but that is not to say they had no (p.289) institutional framework, and no institutional normative order. The same goes for contemporary theocratic states. Law as institutional normative order comes with many variations of form and content. Moreover, as has been said repeatedly, no advocacy is here offered in favour of abandoning the use of the word law in contexts of non-institutional ordering, or indeed (in the case of scientific laws) non-normative ordering. The author of a work of jurisprudence cannot, and should not try to, place some kind of ban on the richness and creative ambiguity of a fluid and always evolving natural language like English. There are interesting analogies as well as traceable differences between different kinds of law recognized both in everyday speech and in more technical literature. It remains the case, however, that in the world that we currently inhabit states have a very prominent role in the articulation and administration of public force. Enforceable law and thus enforceable rights tend therefore to be those that belong to, or are recognized and in some way adopted by, state tribunals and agencies. This means that state-law still matters very acutely to very many people and is naturally a central point of attention for most people who engage in professional practice of the law. That justifies the approach

taken here, not of arrogating the term law or the concept of law solely to the mastery of one state or all states, but of presenting a theory in which the comparative practical importance of state law can be seen for what it is.
16.4 Legal Knowledge and Institutional Facts

This book has at several points acknowledged the power of Niklas Luhmann's systemtheoretical thesis that any system of communication and communicative action operates with some fundamental binary distinction that it uses in all its operations. The institutional theory advanced here proposes the distinction between right and wrong, more strictly, between wrong and not-wrong, as the fundamental one in a normative order. In developed law, of course, this further bifurcates between criminal wrongs that are punishable and the various forms of civilly wrongful conduct that can lead to the imposition of civil remedies of various sorts. Moreover, in the context of two- or more tier institutional order, there are powers as well as rights and wrongs. This introduces the valid/invalid opposition as a distinct dimension of normative judgment. Wrong enables us to define duty, the duty to refrain from any wrongful act and to do each thing that it is wrong not to do. The concept of a duty's being in given circumstances owed to another person, equivalent to the idea that it would be a wrong to that person to breach this duty, enables us to understand passive rights. Since one may do what is not wrong, the idea of an active right or liberty can be presented by simple negation of duty. All this presupposes that we can identify the bearers of rights and duties, potential exercisers of powers, those (p.290) whom the law clothes with personality, and endows with various capacities according to various kinds and conditions of persons. Law can also define what are things for its purposes and regulate extensively rights to things, rights over them, and rights in them. From all this we construct the concepts of property and ownership, and related ideas. But do we have rights, or duties, or powers really? What is going on when we ascribe to persons duties, rights, liberties, immunities, powers, and the like? Ascriptions of such positions or relations (or relational attributes) to persons express judgments of factthat is, of institutional fact as defined at the very beginning of the book. Each person is some kind of individual or collective entity which we consider to satisfy the conditions the law lays down for being a person of some relevant status. Each time we ascribe to some such being some legal position, or some legal relationship (eg, an obligation) with another person, or some more complex proprietary relationship involving both ascertained persons and ascertained things, we are interpreting and applying relevant norms. We are also relying on an understanding of the factual situation that is informed by our interpretation of the norms. Thus do we answer one of the basic questions of this book, namely, the question whether legal knowledge is possible and whether law schools have a genuine right to a place in great institutions of learning and science. The answer is Yes in both cases. Legal knowledge results from interpretative inquiry into law as a conceptual category and into different departments and sub-departments of law. These include public law (including European institutional law, state constitutional law, regional constitutional law, local

government law, and administrative law), criminal law (both the general part and the laws relative to particular kinds of crime, and the law on criminal evidence and procedure), private law (including the law of persons, the law of succession, the law of obligations tort, contract, and restitutionthe law of property, the law of trusts, company law and commercial law, as well as civil evidence and procedure). Chapters 10 to13 have already indicated in an abstract and general-theoretical way the character of the knowledge developed in these domains. Ronald Dworkin offered a challenge to analytical jurisprudence in his Hart lecture of 2001 if this is descriptive, of what is it a description, and in what way? 22 Statements about institutional law, or statements of law offered in a judicial or law-advising or legal-doctrinal context, describe the state and its institutions in some specific placeor some other nonstate institutional entity according to context. A description of French law, if accurate, tells us how things currently stand in France in respect of whatever legal subject-matter we are discussing. The same goes, mutatis mutandis, for a description of Scots law (Scotland being a (p.291) sub-state polity), of EU law (the European Union being a trans-statal polity or commonwealth). Or for a description of the canon law of the Roman Catholic Church (the Church being a non-state religious organization). This neither amounts to nor depends on a theory about language use in French or English or Church Latin or whatever. The institutional theory of law is one that shows how it is possible to describe accurately or convincingly institutional facts that belong in the context of the relevant state or other polity or organization. It is a theory that cannot be advanced without some serious assessment of the values to which institutions of this kind are oriented, and this must indeed involve consideration of the best possible representation of these values for the context that is assumed. But here law is not the only interpretative concept in issue. Law is a supreme practical category for those engaged in legal decision-making or advocacy. But scholarship (or science in some cultures) is the supreme practical category for those engaged in doctrinal or jurisprudential study and in advancing an account of its epistemological foundations. 23 While it is true that the values implicit in law have a necessary and proper motivating and justifying force for judges and advocates, the ideal of objectively understanding the subject-matter of a branch of scholarly or scientific study supremely guides and justifies good scholarship. A judge's vocation is to justice in concrete cases, a scholar's is to understanding. The understanding of a practical category like law is value-laden, for reasons that have yet to be thoroughly explored. To construct or rationally reconstruct an account of some branch of law in some jurisdiction, one must of course expound the value-elements essential to that body of law, and one must indicate what are the possibilities for developing new arguments that would further develop these values. One must be candid about deficiencies and about the possibility of their amelioration or rectification. The truth about the law concerning restitution, or judicial review of administrative action, or corporate criminal liability, to take but a small random set of examples, cannot be disclosed simply by acting as an animated index to the law reports or the statute book,

and by copying out relevant texts. One has to elucidate essential concepts in a manner compatible with, but far more fine-grained than, that indicated in part 3 of the present work. One has to consider statutes and preparatory materialsreports of commissions or parliamentary committees, explanatory memoranda by government ministries, even the texts of legislative debates. One has to consider judicial decisions and the dicta of judges expounding principles and values they consider to be essential in the justifications offered for their decisions. One has to, or at least one may, seek to provide a more sympathetic or comprehensive rationale for the legal materials developed so far in this domain. One may certainly draw attention to comparative materials from other legal systems that express, or perhaps better express, a convincing view of the underlying rationality for the matter in hand. Relevant lessons may also be derived from legal history. Given this rich range of materials, a (p.292) rational reconstruction yields a critical account of the governing rules in the light of the principles and values which underpin them. 24 This may indicate the scope for future interpretations of law that will rectify anomalies in current understanding, including current judicial practice. This is certainly work that calls for application of creative intelligence, developing persuasive conceptions of the concepts deployed in the given branch of law. Nevertheless, it still demands a degree of detachment. Thus the fruits of scholarly inquiries into law are knowledge of legal norms (regulations rules, principles, etc) and legal relations, and the values to which they are oriented, both in general and in particular. Such knowledge relates to some state or polity or organization. Legal norms, like norms of all kinds, are what Ota Weinberger classes as thought-objects, 25 not items among the physical furniture of the universe. They belong in what Karl Popper designated as World III. 26 That is, they have real existence though they are not part of the material world that is apprehended through natural sciences such as physics, chemistry, physiology, and the like. They exist as elements of intersubjective meanings available to human understanding through interpretation. They are not part of the psychic state of any particular person at any given time. Nor are they the physical substratum which is necessarily used for storage of that which is interpreted. Shakespeare's play Hamlet is not identical with any particular book in which it is printed, nor is Isaac Newton's Principia or Albert Einstein's General Theory of Relativity. Each of these exists (as a play, as a scientific exposition of a physical theory) in the same way whether or not anyone is at a given moment reading or thinking about it, or presenting a production of the play or doing an experiment to illustrate the theory. The same goes for the Finance Act 1953, or for the case reported at page 37 of the Law Reports, Appeal Cases for 1977. The statute and the law report are not identical with any of the books in which they are recorded, and exist whether or not anyone is thinking about them or acting as required or authorized by them, or applying the precedent in a current case. They do not occupy any segment of space, but they have a continuous existence in time, or had such an existence, in the case, say, of a now-repealed statute or an overruled precedent. How can such figments then be considered real? One part of the answer is to reflect on changes in the physical world, events that really occur, and that are explicable only on

account of episodes in which some person's acting can be (p.293) imputed to the following of a norm, or the presenting of a play, or the carrying-out of an experiment to test a theory. Without reference to the World III object, the reason for the occurrence, indeed the character of the occurrence, of the World I event would be wholly unintelligible. Implicit in all the foregoing is this important truth: institutional facts are also interpretative facts. 27 Assertions of them in individual cases and in general can be controversial, and resolution of controversy calls for judgments about the underlying values to which legal normsrules and principlesgive concrete form. Thus we come to the point at which it is necessary to attend to the kind of interpretation that is at stake when we seek to understand the legal significance of facts and events, interpreting them by reference to law as some kind of institutional fact.
16.5 Law, State, Civil SocietyFocal Meaning and Constructive Interpretation

Part 3 of this book represents the moment of synthesis, following the analytical work done in parts 1 and 2 . There, in discussing law, state, and civil society, I suggested that an account of law, and in particular a discussion of any branch of law such as public law, criminal law, or private law has to be cast in terms of certain underlying values. A state whose officials conduct affairs with a view to the general good rather than their private benefit is of real value. One in which there are functioning checks and balances among those who exercise public powers is able to secure the rule of law as a condition of human liberty. Public law becomes intelligible only from this perspective. Respect for institutionalized human rights is a condition of justice among persons, though it is not all that is required in order to achieve justice within one or another reasonable conception of that virtue. Constitutional or other entrenchment of fundamental rights becomes fully intelligible only from this perspective. An effective and properly functioning system of criminal law and criminal justice is essential for that relative security of mutual expectations which is a condition of the civility of civil society. Criminal law becomes fully intelligible only from this perspective. Private law both secures the bases of private and family life, and makes possible an exchange-based market economy. Private law becomes fully intelligible only from this perspective. Public law schemes aimed at achieving distributive justice through the tax system and regulatory regimes that establish mala prohibita determine the extent to which a market economy can be characterized as a social market economy. Much (p.294) of political debate and conflict concerns the issue of social or distributive justice, and how far it is proper or wise to superimpose publicly enforced conditions on whatever obligations citizens freely contract among themselves. In a broad sense it might be right to claim, as did Lord Stair in one of the most impressive institutional essays of the early modern law, that the three principles of positive law [are] society, property and commerce. 28 But we need to observe that the balance between the demands of society (social solidarity) and those of commerce (commercial liberty) is always contested, so the property regime that emerges is coloured by the balance thus struckand the same goes for the law of obligations. All market economies are also social; but they are not all so to the same

extent. If all that is correct, a coherent account of the nature of law, and a coherent account of the character of any modern legal system, have to take seriously the very general values that are inherent in the character of the legal enterprise. This may, however, seem to call in question the pretension of the legal scholar or legal philosopher to be developing a body of objective knowledge. Objective knowledge, it may be claimed, has to be valuefree, because all values are an expression of human subjectivity. Since any jurist's values are subjective, the orientation of his or her account of law to certain values must defeat any claim to objectivity in the jurist's output. Such a challenge needs to be met head-on, for it applies to the study of any human activity or institution inside the law or outside it. Economics only makes sense on the basis of assumptions about rationality in the pursuit of value. Rationality is then a value, even if economists are content to treat the other values that rational people pursue as expressible simply in terms of the preferences they happen to have. Art is not explicable simply in terms of objects that happen to be gathered in institutions that we call art galleries, nor are artists simply those who concern themselves with producing objects of that kind. Art is an expression of aesthetic value, and only by reflecting on what is or might reasonably be presented as aesthetic value can one get the point of art. Education is not just whatever system of drilling and lesson-imparting happens to go on in schools or universities, it is essentially about the development and transmission of knowledge and understanding of the human and natural world, such knowledge and understanding being of value to humans. Good education imparts it successfully, bad teaching falls short of achieving this. We cannot know what counts as a car, or a painting, or a geography lesson except in terms of what would be a good, well-functioning, instance of the object of our inquiry. If intelligent design is an example of a reasonably tenable scientific position that offers a serious approach to understanding the life sciences, then it can properly be included in a school science syllabus. If it is a bogus science, wrapping up dogmatic theology in the appearance of a serious rival to Darwinian evolutionism, it could properly be the subject of a class in the (p.295) history of ideas but could not be properly included in a science syllabus in a respectable school or university. We cannot decide which it is without making a value judgment, and offering reasons for it. 29 Different people may disagree, even in good faith, about the weight of these reasons, but it does not follow that there is nothing to choose between them. This representation of the character of explanation and understanding in the human social realm is vastly indebted to the work of John Finnis, who in turn acknowledged a debt to Max Weber. 30 Explanation of conceptual terms has to go forward on the basis of what Finnis calls their focal meaning. Any human activity or enterprise manifests itself in many forms and instances. Some seem clearer or more central, more focal examples of the activity or enterprise than others. This is because some instances better exemplify the values to which the enterprise is properly considered to be oriented. There is at least an analogy of this to be found in Ronald Dworkin's deployment of the idea of interpretive concepts. 31 These are concepts that cannot be put into operation save by invoking some

value or values which enable us to use them in a way that illuminates or makes intelligible some feature of our social and political world. It follows, according to Dworkin, that only the theory that can produce the most satisfactory or attractive holistic account of all that is of real value to human beings can finally achieve true knowledge of the social world. 32 Objectivity depends on values and on giving the best and most coherent account of these. Elucidation of values is not the antithesis of objectivity, but its precondition. Indeed, objectivity itself matters only as a value in the context of some pursuit of understanding and truth. To defend the approach to explanation taken in this book requires acceptance of the elements shared by Dworkin and Finnis, despite much that divides other parts of their theoretical approaches. The methodology of the kind of explanation offered here has to be interpretative or hermeneutic. That is, it must seek to understand the practices and institutions of human beings in terms of what makes them intelligible and worthwhile, or at least on balance worthwhile, to their human participants. 33 It does not follow that a degree of detachment should not (p.296) also be sought by the social scientist, or (in the present case) the jurist. 34 To understand law is not merely to study closely and deeply what law exists in any one country or tradition. Recognition that states, and not only states, normally have law makes different state-societies mutually intelligible. This amounts to the discovery or the simple awareness that they each realize a certain degree of normative order upheld or supervised in various ways by legal institutions that are the supreme governing institutions of the state. The states in question belong to the same genus of law-states even though they may have very different modes of institutional organization and (certainly in the details) differences in the normative content of their legal rules and principles. French law is emphatically not English law nor American law, Swedish is not German and so on and so on. French law separates public from private law in a quite distinctive way and with consequences that have historically led some commentators from other traditions to doubt whether droit administratif really merits the appellation law at all 35 yet it obviously does, and can quite properly be translated as administrative law. Supporters of the French or Italian conception of separation of powers find unacceptable the view that judges can through their precedents effectively make law, and cannot regard executive rule-making powers delegated by the legislature as involving legislation properly so-called. Nevertheless, to say that the different countries we have mentioned do not all have law in the same sense as each other would be as misleading as to say that English, Italian, Swedish, and French are not all languages in the same sense of the term language notwithstanding the differences of vocabulary, inflection, syntax, etc that differentiate them as languages. 36 This is one reason why we should doubt at least one of the implications Dworkin derives from his interpretation of the character of interpretive concepts. In interpreting law (or in interpreting a Shakespeare play), says Dworkin, our task is to make it the best of its kind that it can possibly be. 37 But surely I do not have to be thinking how to make French law be seen in the best possible light when (p.297) I am seeing that France really has law that is interesting and perhaps fruitfully comparable with Scots, or American, or English law. Someone might share some of the attitudes Dicey brought to

bear in his critique of droit administratif without being even tempted to conclude that this is anything other than a kind of law, and an important part of the law of the French Republic. Used comparatively and as a tool for understanding common elements among different states, law can indeed only be understood in terms of the orientation of those engaged in law-work towards peace, justice, and related values, albeit often ineptly and sometimes with deeply undesirable side-effects. But there can and should be no assumption for this purpose that our duty is to depict any particular legal order in the best light possible, showing how it can best realize justice with least adverse side-effects. That is indeed a significant element in practical law-applying activity within the system, but it is not a part of the concept of law itself. Because law implicates the kind of values it implicates, it guides in a particular direction the practical application of legal rules and their interpretation for the purposes of application. But that follows from, rather than constituting, the meaning of the term law. As institutional normative order, law is an omnipresent feature of states and of sub- and super- or inter-state polities. Our understanding of it has to be in terms of its functionality towards certain values. This has, however, to be qualified with a certain grim realism about the omnipresent possibility of failure, and the high likelihood that any real system will have serious blemishes judged in the light of the very values which are the final causes of institutional normative order. 38 Some work of legal interpretation can be put forward with a view to exhibiting in a ruthlessly clear way what are the incoherences and injustices in a current body of law, hoping thereby to bring about recognition of defects and political pressure for reforms.
39
Moreover, most people engaged with the law are mercenaries. Lawyers, judges, and police and prison officers work for paymentand so do law professors. In working with law, we work with that which has an in-built value-orientation of the kind described here. But we do not do so only for the sake of these values. It is a perversion of the vocation to law if a person so employed pursues personal gain at the cost of justice, peace, and the like, as distinct from accepting legitimate payment for faithfully playing his or her part in the administration, enforcement, or study of the law. That such perversion exists in some measure wherever law is practised, enforced, and studied we need not doubt for a moment. It is not (p.298) evinced in the case of a lawyer who, as advocate, presents her/his client's case in the best possible light, even when the advocate's private opinion is that actually the other side's case is the strongerfor it is the judge's role to decide that, not the advocate's.
16.6 Mind the Gap!Again

Predictably, there will be readers of this book who will consider that the account of law as institutional normative order is built around a nave and unduly optimistic set of values. These contrast startlingly with the state of the real world and the real social circumstances in which legal systems are to be found. Confronting the squalor and misery of prison life, the glaring inequalities of life in contemporary cities even in wealthy countries, the cynicism and callousness exhibited by many officials, the brutish indifference to civilized values exhibited by many young people high on drink or drugs,

how dare one utter platitudes about criminal law securing the civility of civil society? Given huge and growing inequalities of income and wealth between the capitalist elite and the rest, alike in rich and poor countries, why go on about law as a system geared to justice, whether distributive justice via public law or corrective justice via private law? As Roger Cotterrell has argued, philosophical jurists need to get out of their armchairs occasionally and take a look at the real working of real legal institutions in actual present societies. 40 At the very least, they need to take more seriously the findings of those who have pursued empirical sociology of law in this way. Legal systems and legal practices are perhaps as often causes of real suffering and indeed real injustice as the reverse. Why privilege justice as a special virtue of law, if real law is often wanting in justice? Yet another analogy may help towards an answer. It is clearly the case that the driving of motor cars is a major cause of death and injury in contemporary societies. Accident rates are interestingly variable from one country to another, but none is spared the frequently recurring grief and misery inflicted on people by car accidents. Many professionals, from traffic police to accident and emergency surgeons, are kept in employment trying to deal with this menace. There would, however, be something obviously perverse about developing a theory concerning cars according to which they are to be considered efficient instruments for killing and maiming people, and are accordingly to be appraised as contributing to the employment prospects of police officers and surgeons. Cars, unlike tanks, are to be valued not for their lethal potentiality, but despite it. They are for efficient, comfortable, speedy, and safe personal transportationwith no doubt an element of the status symbol thrown in. Manufacturing developments which can make (p.299) cars safer, at least for their occupants, are prized, and advertisements stress such features. Legislators, and ministers with delegated powers of executive rulemaking, develop a battery of regulatory rules and standards, sometimes enforced under strict liability regimes, to try to ensure that dangers arising from car use are kept down to some acceptable level in balance with the other values we have noted. Cars are desirable personal transportation facilities with dangerous side-effects. They are not lethal weapons with desirable person-transporting side-effects. This is an objective fact about cars in contemporary societies. It is an objective fact mirrored in the attitudes and preferences of motorists, pedestrians, manufacturers, car dealers, law-makers, and others. It is not a fact about these attitudes, but one that depends upon them. It is a fact that is not contradicted by the occasional use of cars to inflict wilful and deadly injuries, or as getaway vehicles from robberies or the like. You do not have to be a genius to differentiate the abuse of something from its proper use, even though the possibility of abuse is built into the features that facilitate proper use. In the same way, but with much greater complexity, we can contrast the harmful and unjust effects of many laws and much administration and enforcement of law with the aspiration to civility and justice that is intrinsic to legal institutions. The harm and injustice are undesirable (though perhaps in some degree unavoidable) side-effects of institutions whose proper end (or final cause) is the securing of peace and civility in circumstances of justice which enable fair and free markets to function. To put it the other way round is to say what cannot be seriously maintainedthat legal systems function properly to the

extent that they facilitate tyranny and exploitation, though sometimes they produce justice and civility as side-effects. In the same way, one might point out that only someone who can speak a language can deceive people by telling them lies. But if we supposed that deceit were the function of human linguistic communication as distinct from a normally undesirable side-effect, we would say what cannot be taken seriously. For, as Thomas Reid long ago pointed out, no one would then be able to learn a language, and deceit by means of spoken lies would in fact be impossible. 41 Mind the gap! is the moral of the story so far. It is hardly disputable that a conceptually satisfactory understanding of law that looks to its focal meaning and acknowledges the character of an interpretative concept like law must take fully into account the values to which legal activity is essentially oriented. But this makes urgent attention to the gap between law grasped conceptually and law in its actual social implementation and impact. It is thus an important question to ask what lawyers, judges, and law-enforcement officers actually do. Systematic accounts of answers to this and like questions that are the fruits of research in the sociology of the professions or of law, or of criminological study, or of applied (p.300) economics, command the serious attention of anyone who is concerned with or about law. This applies especially to those who are engaged in juristic or philosophical study of it, or in the development of legal doctrine and scholarship. For there has to be some kind of reflective equilibrium between the conceptual understanding of a category like law and methodologically respectable empirical accounts of the multifarious sorts of activities that people undertake in ways that purport to be oriented towards law. 42 Some theorists assumptions about the character and value-orientation of law might turn out to fit badly with a substantial part of the most convincing empirical accounts. This would not amount to refutation of the conceptual account in question, but it would render more persuasive the case for an account that gave a better fit. The present theory of law as institutional normative order seems to fit better than most rivals with empirical understandings of legal activity, while also accounting for the way law is a category of human practical life, revealed in the value orientations we have been discussing. If so, this is indeed a point in favour of the theory. For those who remain uneasy about the argument that law as a conceptual category cannot simply be equated with what lawyers do, let us review another analogy, concerning health and health professionals. Health is very obviously a value, instantiated by all those organisms that are in good shape as the kind of organism they are. Mental and physical health are of great concern to human beings, and the organization of health services, whether in the public or the private sector of the economy, or in some mix between these, are matters of perennial concern and controversy. The regulation and licensing of various sorts of practitioners is a matter of concern, and all contemporary states have established public institutions and laws that deal with this, in what purports to be the public interest. We could construct a theory that might be called medical realism, which would say that medicine is no more than the aggregate of the practices of those who practise medicine and related health professions, being publicly certified as competent to do so. There would seem to be a certain blunt truth in this. Medicine is what doctors do in fact, and nothing more pretentious. 43

But what if it turns out that some things doctors do actually harm patients? What about so called iatrogenic diseases? When I was young, medical people advised us to stay away from swimming pools in warm weather, because polio was apparently a water-borne diseasewas that medically correct, because doctors then said it was? I recall also a time when doctors still advised women that smoking cigarettes was beneficial as a way of controlling nervous disorders. It is still the case that hospitals make some people sick through MRSA infection while attempting to cure them of something else. (p.301) The moral of this story is that medicine is about the promotion of health and the prevention of disease, but that humans are capable of mistakes in pursuing these objectives. Epidemiological and other empirical studies about the way the health professions work are of enormous importance and can contribute in all sorts of ways to critique of and reform in medical practice. But they do not displace the value concepts health and disease from their central place in a conceptual account of medicine. The same goes for law, mutatis mutandis. Again, though, the fact that health is an interpretative concept would not justify our concluding that the study of medicine should seek to present it always in the best light possible. We have to be candid about failure as well as success. Those who developed and those who prescribed the drug thalidomide did so with the best of intentions and motives toward the reduction of pain and the diminution of discomfort in the early months of pregnancy. But this was a disaster that blighted many lives. The well-intentioned (but also profit-oriented) pursuit of health in this case caused deformity, damaged children, and brought grief and suffering to parents. As prescribed to pregnant women, thalidomide was bad medicine, in every possible sense of that phrase. But the concept medicine applies to this case also, as well as to the brilliant achievements of those who developed penicillin, or pioneered kidney transplantation, or in vitro fertilization. Of course, from the point of view of the practitioner, one with a true vocation to the healing arts, the idea of medicine as oriented to whatever is truly the health of human beings, physical and mental, is a motivating idea. The effort to understand some form of cancer, or schizophrenia, or depression, to find its causes and its potential cures, and meantime to alleviate as well as possible what cannot yet be cured, has the aim of bringing about the best currently achievable health for this patient or those afflicted persons. Interpretative concepts are indeed in this way intrinsic to motivation within a certain practice. This explains why in their more detached descriptive uses they remain nevertheless value-oriented in the descriptions they enable us to give. It does not undermine the project of detached description, and indeed it is in the detached and descriptive mode that legal science and legal theory do and should proceed. The objectivity of good scholarship is different from the impartiality coupled with commitment to justice of good adjudication. That is, scholarly objectivity contrasts with, but fully takes account of, the motivating commitment that is engaged when we step over from legal science or legal theory into such roles as that of advocate, judge, law-reformer or legislator. 44 This is not (p.302) a claim to have found some Archimedean point outside, perhaps above, the practical activity from which one looks down on the activity

and sees that it represents nothing real. 45 Rather, as Luhmann points out, it involves a kind of self-observation of the legal system from within it, but an observation that is not aimed directly at the solution of particular current practical problems arising within it. 46
16.7 Facile Eclecticism?

An important part of the message of part 3 of this book concerned the interplay between law, politics, and economics as elements within the totality of contemporary social life. The civility of civil life is expressed in, and depends on, this interplay. Luhmann's systemtheory affords a grand-scale sociological account of this, portraying law, politics, and economics (along with others) as major sub-systems of the whole social system. Each is distinguished by its own holistic self-conception, and each receives inputs from the others only through interpreting them in the coding appropriate to the receiving system. This is a social world of imperfect mutual understanding in which each system is constantly adjusting to inputs from others which are in turn likewise in perpetual self-adjustment. The institutional theory of law presented in this book is not derived from sociological system-theory, nor are any of its main theses entailed by system-theory. Nevertheless, the two approaches are strikingly mutually compatible, not least (as just noted) in relation to the role system-theory assigns to internal self-observation within a system. To repeat a point made in the introductory chapter: Law involves both front-line activities of law making, judging, advocacy, counselling, drafting, and doing, and second-line activities of observing these activities from within the practice taken as a whole. The actor of the second line, the student or scholar of law, concerned with jurisprudential or doctrinal exposition of it, has a certain detachment by contrast with front-line actors. On the other hand, this second-line actor has also a relatively high degree of engagement by contrast with purely external observers. These latter (for example) take the whole corpus of legal activity, including the output of legal scholars and legal theorists, as a subject matter for study from the standpoint of sociological or anthropological inquiry or of economics or political science. 47 It follows that there is a difference between law and politics (or law and economics) as well as an important measure of overlap between them. No important legal (p.303) question lacks political implications, and vice versa. Nobody could have a well-considered philosophy of law which did not mesh with an equally well-considered position in political philosophy. But this would not mean that either collapses into the other. To accept Luhmann's line on this is necessarily to reject that of Dworkin, who presents an essentially unitary view of legal and political philosophy. Equally, however, one need not go the whole way with Luhmann, for whom individual human beings enter sociology as psychic systems, interacting with the other surrounding systems. Such a view is totally contradictory of the insistence on moral autonomy around which the account of the distinctiveness of morality and law was built in chapters 14 and 15 . The debts owed in these chapters are to the discourse theory of Robert Alexy, and in turn to Jrgen Habermas, and beyond them, to Kant. It is a

notorious fact that Luhmann and Habermas were mutual adversaries in the intellectual realm. It is easy therefore to foresee at this point critics levelling at the present work accusations of facile eclecticism, or methodological syncretism. They may well say this is just an instance of a jurist flitting in a light-minded way from incompatible theory to incompatible theory, selecting attractive-seeming portions and lumping them together in blithe disregard of their deep incompatibility. Such criticism would, however, be illfounded. To be over-impressed with such accusations would involve retreating into the kind of theoretical isolationism castigated by Roger Cotterrell. The fundamental premises of the argument from moral autonomy come first, as far as I am concerned. Human societies are societies of persons with a capacity to realize moral autonomy in their lives. This can occur in conditions of civil society (perhaps in others as well, but certainly in civil society), where civil interaction of persons is possible. Civil society requires some form of law, and the legal order of a constitutional state, or law-state, is certainly a key element in securing civility. But other key elements are economic relations and politics. To accept system-theory for the light it sheds on these interacting elements does not require one to abandon critical judgment in respect of some less convincing parts of the theory. The same goes for other bodies of thought on which I have drawn in this book and its companion volumes.
16.8 Final Conclusions

What this book has established about law and legal knowledge can be summarized as follows: 1 Normative order is possible, because humans are norm-users. They can and everywhere do co-ordinate their activities by reference to shared or common standards, even without making these explicit and without formalizing them in any way. This very capability for co-ordination in turn makes possible formalization, or institutionalization, of norm-establishing, norm-applying, and (p.304) normenforcing agencies. Constitutional states are a very spectacular example of this. But always in the final analysis the formal rests on informal, customary foundations. 2 Institutional normative order makes possible the explicit enactment of legislated rules and the articulate development of background principles through adjudication and through development of legal science. Law as institutional normative order thus comes to be a complex and systematic whole. Within it, persons are defined and can occupy a variety of ever-changing legal positions and relations. To know of these is to have knowledge of institutional facts. This depends on interpreting facts and events that exist or have occurred, or that will or may occur, in the light of institutional or non-institutional norms and their background values. Such knowledge is potentially motivating, though in many cases where such an interpretation could be advanced no one actually advances or takes account of it. 3 The institutional character of law is intelligible only on an assumption concerning

the intrinsic ends of the enterprise of governance under law: these are the realization of justice and the common good, according to some reasonable conception of these. 4 The systematicity of law is best observed by considering the subdivision of the whole body of legal material into such categories as public law (with the contemporary satellite of human rights law), criminal law, and private law, or further subdivisions of these. To make these fully comprehensible, one has to consider the differing but complementary values implicit in these legal domains: orderly government and distributive justice; civil peace and retributive justice; private life and market economy, underpinned by remedial measures of corrective justice. 5 Institutionalization of law entails that state law has a positive (posited) character. Accordingly, law stands in fundamental contrast with autonomous morality, though the human capacity for conceiving and pursuing the imperatives of an autonomous moral code may well require the context of civility that state law can bring about. The distinctiveness of law from morality by no means entails that the law itself or its intelligent study can be value-free. Indeed, a sound theory of law can and should affirm that essential to existence of any institutional norm as a law must be some minimal satisfaction of basic requirements of justice. This itself is in the contemporary world institutionalized through Human Rights Conventions, Charters, and the like.
16.9 Coda
At the very end, it is necessary yet again to confront a fear that has been perennial among legal thinkers. This may be provoked afresh by the admission that reference to value must enter into any exposition either of the general character of law (p.305) or of some body of law actually in force somewherefor example, contract law in France, or administrative law in Norway, or European Community law about competition. The fear is that such reference to value deprives legal theory and legal scholarship (legal doctrine, legal dogmatics, legal science, academic law) of any pretension to scientific character. Were this true, law schools, so far as they are anything more than trade schools teaching the skills and tricks of a sometimes questionable kind of job, would be purveyors of ideology, not disseminators of knowledge and learning. Were it true, jurisprudence would become, or be seen as what it has been all along, an exercise in legitimation of the actual state and its mode of government. Were it true, law professors would be mere apologists for the established order of things, interpreting that in the most attractive possible light. Those who could not in conscience take on this role could have no role other than to be iconoclasts within the academy, trashing received doctrines and presenting alternative versions that systematically turn on their heads the values and value-laden accounts laid forth by the orthodox. Such work would admittedly not be scientific, but it would be no more unscientific than the orthodox accounts of law that otherwise prevail. Sure, it may be ideologybut it is honest and open ideology, not a legitimating ideology masquerading as some kind of objective legal science. 48

The answer to this reiterates the point that human artefacts and contrivances, including any rules by which people try to live, or get others to live, have to be understood functionally. What is their point, what is the final cause to which they are oriented? They perform well or ill, are in good shape or bad, to the extent that they can be seen to work towards these essential ends with a minimum of regrettable side-effects. It is undoubtedly controversial what functions should be ascribed to law in general or to particular laws or any other human production. Failure to confront and account openly for values involved, and to defend one's own proposals as to what the relevant values are, may confer on work about law an apparently greater objectivity than if a proper open-ness were practised. But it is this concealment of value-orientation, not its open avowal, that is ideological in a sinister sense. Honest interpretation that is open about the values it presupposes and that is as alert to system-failures as system-successes judged against those values is the best objectivity that is available to the human sciences, jurisprudence included. (p.306) Notes: (1) Law Quarterly Review 70 (1954) 3758; reprinted in H L A Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 2148; though theory is to be welcomed, the growth of theory on the back of definition is not (at 25). (2) Hart, Concept of Law, 1215. William Twining shares this view, and shows that Karl Llewellyn was ahead of Hart's game in this respect. See W Twining, Globalisation and Legal Theory (London: Butterworths, 2000) 7980. (3) See R N Moles, Definition and Rule in Legal Theory: a reassessment of H L A Hart and the positivist tradition (Oxford: Basil Blackwell, 1987). In a different tradition, Robert Alexy concludes with a (summative) definition in his The Argument from Injustice (trans S Paulson and B Litschewski Paulson) (New York, NY: Oxford University Press, 2002) 127130. (4) The concept of normative order is also used by Hans Kelsen (to whom indeed I owe it)see, eg, his General Theory of Norms (trans M Hartney) (Oxford: Clarendon Press, 1991) 214215, as one among very many instances. (5) There is after all such a thing as virtuous stipulation, as argued for by Andrew Halpin in Concepts, Terms, and fields of Enquiry Legal Theory 4 (1998) 187 at 1958. Cf Richard Robinson, Definition (Oxford: Clarendon Press, 1964). Robinson draws attention to one kind of real definition that he thinks is better described as analysis (171180) Later, he adds that this may lead on into synthesis and then an attempt at improvement of concepts, saying Like the analysis of concepts, the improvement of concepts is often a very difficult and groping operation Every improvement of a concept carries along with it a stipulative redefinition of the word expressing the concept (p 187). The explanatory definition advanced here is put forward in that spirit. Brian Bix's account of the (various) purposes of conceptual definitions seems also compatible with or perhaps even favourable towards the present approach: see B Bix, Jurisprudence: Theory and Context

(London: Sweet & Maxwell, 4th edn, 2006) 1925. (6) Is this then an essentialist claim as characterized and deprecated by Brian Tamanaha, General Jurisprudence 135145? It is not so in the sense of discovering a single essence in whatever is conventionally called law. But it does depend on a view about the values which it is important to realize through the institutionalization of normative order in the context of the state and other partly state-like forms of organization. It is of the essence of law, I claim, that it should, not that it everywhere does, realize these values. This is a matter of focal meaning as discussed at 16.6 below. (7) Cf Vo v France ECHR no 53924/00, 41, 6264, 70, 84. As a matter of European human rights law, there is no available remedy in such a case, according to the Grand Chamber of the European Court of Human Rights ch 5 above, at n 10 . (8) R Dworkin, Hart's Postscript and the Character of Political Philosophy Oxford Journal of Legal Studies 24 (2004) 137 at 35, 1922. (9) Halpin has also argued in The Methodology of Jurisprudence: Thirty Years off the Point (Canadian Journal of Law and Jurisprudence 19 (2006) 67105 at 912) that legal theorists have been mistaken in separating the theoretical and the practical questions in this way, and concentrating too much effort on the former: What are the appropriate roles for legal theory? Primarily, to clarify the means whereby the law expresses and attains the resolution of controversy. From which follows the role of illuminating within the continuing practice of law the potential directions which that resolution might take . This latter task is certainly an urgent one, and I have contributed to it in Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), but it seems to me to presuppose the kind of theory attempted in the present book, not to make it redundant. (10) This is Dworkin's term for the kind of conversation-stopping definitional move considered in the present paragraph. See Law's Empire at 45: People are its prey [the prey of the semantic sting] who hold a certain picture of what disagreement is like and when it is possible. They think we can argue sensibly with one another if, but only if, we all accept and follow the same criteria for deciding when our claims are sound. Myself, I think it is of value to discuss such criteria and explain reasons for adopting them; not that pre-existing agreement on them is necessary, nor that conversation with those who reject them is pointless. (11) R Robinson, Definition (Oxford: Clarendon Press, 1964) 3558. (12) Hence the present approach rejects the kind of conventionalism proposed by Tamanaha in General Jurisprudence 166170. (13) D Hume, A Treatise of Human Nature (ed L A Selby-Bigge, revised P H Nidditch) (Oxford: Clarendon Press, 2nd edn, 1978) 469470 (Book III, Part I, s 1, last three paras). (14) T Reid, Essays on the Active Powers of the Human Mind (with introduction by B

Brody) (Cambridge Mass and London: MIT Press, 1969) at 470471 (Essay V, ch 7). Responding to Hume's demand that ought and ought not be explained, Reid says, To a man that understands English, there are surely no words that require explanation less. Are not all men taught from their early years, that they ought not to lie, nor steal, nor swear falsely? (15) Cf references in N MacCormick, Questioning Sovereignty 1. See also Kelsen, Hauptrobleme der Staatsrechtslehre (Tbingen: J C Mohr, 1911) 441. (16) H Kelsen, General Theory of Norms (trans M Hartney) (Oxford: Clarendon Press, 1991) 13. (17) H L A Hart, Essays on Bentham (Oxford: Clarendon Press, 1982) 253255. (18) E Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History (Oxford: Hart Publishing, 2006). (19) Kelsen, Pure Theory 225226; for a sharply different, and preferable view, see J Bjarup, Social Action: the Foundation of Customary Law in P rebech, F Bosselman, J Bjarup et al, The Role of Customary Law in Sustainable Development (Cambridge: Cambridge University Press, 2005) 89157, especially at 135151. (20) W Twining, Comparative Law and Legal Theory: the Country and Western Tradition in I Edge (ed), Comparative Law in Global Perspective (Ardsley, NY: Transnational Publishers Inc, 2000) 2176. (21) On pluralism, cf Twining, Globalisation and Legal Theory 224233; Tamanaha, General Jurisprudence of Law and Society 192200. (22) R Dworkin, Hart's Postscript and the Character of Political Philosophy Oxford Journal of Legal Studies 24 (2004) 137, at 912; for a riposte, see A Halpin, The Methodology of Jurisprudence: Thirty Years off the Point Canadian Journal of Law and Jurisprudence 19 (2006) 67105 at 7677. (23) Cf J Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001). (24) Cf R Alexy, A Theory of Constitutional Rights (trans J Rivers) (Oxford: Oxford University Press, 2002) 610 on the analytical, empirical, and normative elements of legal doctrine according to his conception of it. (25) O Weinberger in N MacCormick and O Weinberger, An Institutional Theory of Law (Dordrecht: D Reidel & Co, 1986) at 3238 on norms as thought objects. (26) K Popper, Objective Knowledge (Oxford: Clarendon Press, 1973) ch 4; cf Ota Weinberger, Facts and Fact-Descriptions in N MacCormick and Weinberger, An Institutional Theory of Law ch 4. See also P Morton, An Institutional Theory of Law (Oxford: Clarendon Press, 1998) 3, 12, 58.

(27) Dworkin treats interpretive facts as a category opposed to that of institutional facts, in his On Gaps in the Law in P Amselek and N MacCormick (eds), Controversies about Law's Ontology (Edinburgh: Edinburgh University Press, 1991) 8490 at 85. For reasons explained in the present work, this is incorrect. (28) James, Viscount Stair, Institutions of the Law of Scotland (D M Walker (ed), from the second edition of 1693) (Edinburgh: Edinburgh University Press, 1981) I.i.18 (p 91). (29) See the recent decision by Judge John E Jones, III in Kitzmiller v Dover Area School District (2005) WL 578974 (MD Pa 2005), doubting the scientific standing of intelligent design. (30) J Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) 1218, citing M Weber, The Methodology of the Social Sciences (trans and ed E Shils and H A Finch) (New York, NY: Glencoe Free Press, 1964) 58, 7682; also J Freund, The Sociology of Max Weber (trans M Ilford) (London: Allen Lane, Penguin Press, 1968) 51 61. B Leiter in The End of Empire: Dworkin and Jurisprudence in the 21 st Century Rutgers Law Journal 35 (2005) 16581 ascribes to Finnis the primary intellectual force behind debate on juristic methodology. (31) See R Dworkin, Law's Empire (Cambridge, Ma: Harvard University Press, 1986) 4868 on interpretive concepts. Cf Stephen Perry, Interpretation and Methodology in Legal Theory, in A Marmor (ed), Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995) 137154. (32) R Dworkin, Hart's Postscript and the Character of Political Philosophy Oxford Journal of Legal Studies 24 (2004) 137 at 35. (33) See P M S Hacker, Hart's Philosophy of Law, in Hacker and J Raz (eds), Law, Morality, and Society: Essays in Honour of H L A Hart (Oxford: Clarendon Press 1977) 125 at 1218 on Hermeneutics and the Concept of Social Obligation, and compare N MacCormick, H L A Hart (London, Edward Arnold, 1981). Hacker's was, I think, the first use of the idea of hermeneutics in English-language jurisprudence. (34) Compare J Dickson, Evaluation and Legal Theory (Oxford: Hart, 2001), suggesting that a theorist has to consider law on the basis of an evaluation of what makes it important to participants, but need not her- or himself be committed to those values that motivate participants in order to succeed in pursuing the theoretical enterprise. (35) A V Dicey made a famous, but in the end unsuccessful, attack on droit administratif in his Introduction to the Study of the Law of the Constitution (ed E C S Wade) (London: Macmillan, 10th edn, 1964) ch 12, 328405. (36) Halpin argues in The Methodology of Jurisprudence: Thirty Years off the Point (Canadian Journal of Law and Jurisprudence 19 (2006) 67105 at 8788) that there is a question-begging difficulty inherent in the effort to seek a general definition of law for all municipal legal systems. If an explanatory definition in the present sense is to be of any

value, it must help us toward understanding what it is that law-states have in common even despite their manifold differences. If not all states turn out to be law-states this may be even more illuminating, since it is a proposition confirmed by common sense. (37) See Law's Empire 5256 on constructive interpretation. (38) For a critique of over-extensive claims about constructive interpretation, see W Twining, Law in Context: Enlarging a Discipline (Oxford: Clarendon Press, 1997) 174 177; Twining and D Miers, How to Do Things with Rules (London: Butterworth, 4th edn, 1999) 377379; Twining, The Great Juristic Bazaar (Aldershot: Ashgate/Dartmouth, 2002) 3437, 472473. (39) This can even extend over into satirical novels that highlight how the law current in some jurisdiction is going wrong. A P Herbert's satire Holy Deadlock (London: Methuen, 1934) expressed a critical interpretation of divorce law and practice as it operated in England in the 1930s, and was certainly influential in contributing to the development of a political climate in which divorce law reform became possible. (40) R Cotterrell, The Politics of Jurisprudence: a Critical Introduction to Legal Philosophy (London: Butterworth, 1989). (41) See T Reid, Essays on the Active Powers of the Human Mind (with introduction by B Brody) (Cambridge, Mass and London: MIT Press, 1969) at 443 (Essay V, ch 6), on the impossibly self-defeating character of deceitfulness: Without fidelity and trust, there can be no human society. (42) Cf Cotterrell, Law's Community at 222234; Tamanaha, General Jurisprudence of Law and Society at 77107. (43) Cf Oliver Wendell Holmes, Jr: The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law (The Path of the Law in Collected Legal Papers (London: Constable & Co, 1920) 167202 at 173). (44) Dickson, in Evaluation and Legal Theory (Oxford: Hart Publishing, 2001) makes a case for the scholar's taking a relatively detached stance, while remaining engaged with value-concerns. For a defence of a somewhat more engaged and prescriptive stance, see F Schauer, The Social Construction of the Concept of Law: A Reply to Julie Dickson Oxford Journal of Legal Studies 25 (2005) 493501. For an excellent general, but critical, survey of recent methodological debates, see A Halpin, The Methodology of Jurisprudence: Thirty Years off the Point Canadian Journal of Law and Jurisprudence 19 (2006) 67105. (45) Dworkin has criticised the Archimedean methodology of Hart and others in their claim to be pursuing a theory of knowledge extraneous to the knowledge it purports to explain. See Hart's Postscript Oxford Journal of Legal Studies 24 (2004) 137. (46) The methodology here defended does not purport to be Archimedean in this sense,

on the grounds explained by Luhmann, Law as a Social System (Oxford: Oxford University Press, 2004) 5859, 305307. (47) See pp 56 above. (48) J Balkin, Cultural Software: A Theory of Ideology (New Haven, Conn: Yale University Press, 2003); cf W Lucy What is Wrong with Ideology? Oxford Journal of Legal Studies 20 (2000) 283300, reviewing D Kennedy, A Critique of Adjudication: fin de sicle (Cambridge, Ma and London: Harvard University Press, 1997).

Laws and Values Reflections On The Method

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Institutions of Law: An Essay in Legal Theory

Laws and Values: Reflections on Method

Abstract and Keywords

Laws and Values: Reflections on Method

16.2 Definition, Conventionalism, and the Semantic Sting

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

16.3 Analytical Explanation and Legal Pluralism

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

16.4 Legal Knowledge and Institutional Facts

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

16.5 Law, State, Civil SocietyFocal Meaning and Constructive Interpretation

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

16.6 Mind the Gap!Again

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

16.7 Facile Eclecticism?

Laws and Values: Reflections on Method

16.8 Final Conclusions

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

Laws and Values: Reflections on Method

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